FDR against the Bill of Rights

In this week’s column, I’d like to raise two questions suggested by David Beito’s excellent book The New Deal’s War on the Bill of Rights, which I reviewed last week. First, how can it be that Franklin Roosevelt has acquired a reputation among leftist historians as a champion of liberty, with his internment of Japanese Americans during World War II regarded as an aberration, in the face of the manifold violations of civil liberties that occurred during his administration? Second, given Roosevelt’s authoritarian proclivities, why wasn’t he successful in imposing the complete regime of censorship he wanted?

The answer to the first question is that Roosevelt preferred in most cases to work behind the scenes, aiding and abetting others to do his work. We see this in the activities of Hugo Black and Sherman Minton, both senators and later Supreme Court justices, whom Roosevelt assiduously encouraged and promoted.

Black, who from 1935 chaired the US Senate Special Subcommittee to Investigate Lobbying Activities, subpoenaed a vast number of telegrams from opponents of the New Deal, putting their activities under surveillance in an effort to intimidate them. As Beito explains,

The committee monitored private communications on a scale previously unrivaled in US history, at least in peacetime. Working in tandem with the Federal Communications Commission and the Roosevelt administration, it examined literally millions of private telegrams with virtually no supervision or constraint. Those singled out for this surveillance were anti–New Deal critics, including activists, journalists, and lawyers.

In acting in this fashion, Black was doing what Roosevelt wanted.

The committee’s most powerful champion was Roosevelt himself, though he carefully avoided tipping his hand in public. . . . Roosevelt responded to [Raymond] Moley with “a long discourse of how Black’s invasion of privacy had ample precedent.” The inference drawn by Moley was that for Roosevelt “the end justified the means.” The conversation left Moley “with the harrowing intimation that Roosevelt was looking forward to nothing more than having the opposition of his ‘enemies’—the newspapers, the bankers, the businessmen—reelect him.” . . . The Black Committee was first and foremost a creature of Roosevelt’s wish to establish a congressional committee to discredit opponents. After the president had made that decision, he sought out Black, a loyal political foot soldier, to take charge.

Roosevelt appointed Black to a vacancy on the Supreme Court in 1936, knowing that he could count on that stalwart New Dealer to uphold all his unconstitutional programs. When it became public knowledge the next year that Black had, in the words of Charles Tansill, “hidden his face beneath the hooded robes of a Klansman,” there was a clamor for Black to resign, but Roosevelt did not join it, even though Black admitted having been a KKK member. Many years later, Black ironically earned a reputation as a “free speech” absolutist, although he still defended his vote in Korematsu v. United States upholding Roosevelt’s order to intern Japanese Americans in concentration camps. According to Beito, “Black . . . was unrepentant. In 1971, he asserted that ‘[p]eople were rightfully fearful of the Japanese in Los Angeles. . . . They all look alike to a person not a Jap. Had [Japan] attacked our shores, you’d have had a large number fighting with the Japanese troops.’”

After his victory in the election of 1936, Roosevelt was determined to destroy those who had lobbied against his plan to pack the Supreme Court and against other New Deal measures. Probably the most important such group was the National Committee to Uphold Constitutional Government (NCUCG). Much of the day-to-day administration of this committee was conducted by Edward Rumely, who proved able and efficient in his job. Minton’s chief tactic in disabling the group was to subpoena the tax records of its principal contributors, hoping that bringing their names before the public would make them reluctant to give more money. When Rumely and others challenged this gross invasion of privacy, Minton responded by releasing some of the tax records of the organization to the public. Roosevelt fully backed Minton and asked J. Edgar Hoover to conduct an FBI investigation of Rumely. Beito describes this sad chain of events:

New Dealers seemed to have found an ideal champion in Sherman Minton. As a biographer put it, his loyalty to the president and his agenda “uncommon even among fellow true-believers,” included a “strong streak of populism, and belief that government must be powerful”. . . . In December 1937, Roosevelt affirmed his confidence in the Minton Committee by inviting all three Democratic members to an eight-man “council of war” to plot strategy for 1938 . . . Minton articulated the group’s consensus by recommending a fighting stance. “The opposition isn’t satisfied with a conciliatory attitude,” he declared. “The only thing they understand is a swift kick where it hurts.” He urged a “crack down” on the taxes of the rich. . . . Roosevelt was more than receptive, chiming in, “We have just begun to fight.”

It is clear that Roosevelt wanted the total suppression of his critics, and this leads to our second question: Why did he fail to achieve his goal? He won some victories: for example, the NCUCG suffered a major loss in funding due to Minton’s efforts. But Roosevelt did not succeed in imposing totalitarian control. One reason for this, and it is a reason that is instructive for our own troubled times, is that his efforts at suppression met resolute opposition, and not only from those directly targeted. Many among those with impeccably pro-Roosevelt credentials, as well as libertarians such as Albert Jay Nock and H.L. Mencken, who could not be dismissed as lobbyists for big business, avowed their support for civil liberties, and the public pressure forced Roosevelt and his senatorial entourage to back down.

The ever-persistent Norman Thomas [a frequent Socialist Party candidate for president] charged that Roosevelt represented “the party of Frank Hague [a corrupt and tyrannical New Jersey political boss,]” while Albert Jay Nock, an individualist and civil libertarian, blamed what he regarded as Roosevelt’s disdain for the Constitution on New Deal policies of centralization. Roosevelt, according to Nock, “advises Congressmen not to be too particular about the constitutionality of a measure which interests him. . . . Given a Roosevelt who manipulates or disregards the law as he sees fit, and you immediately spawn a tribe of Murphys, Hagues, Ickeses, Wallaces, Blacks, Mintons, who may freely manipulate or disregard the law as they see fit” (emphasis Nock’s)

Faced with today’s government schemes to deprive us of our liberties, such as “gun control” and the restriction of “hate speech,” it is imperative that we fight back.